Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-06-09
TIE SUPREME COURT.

D. II. and G. II. Mcclure VS.. heirs of
G. W. Sheek, from Baylor county; opin-
ion by Gaines, A. j. In 1872 j. W.
Sheek sold i tract of land for 5000, of
which 81 was paid in cash, and j. M.
Lane, doctor of the vendee, assumed to
pay the balance in cattle. 1t was agreed
that Lane should pay G, w. Sheek "a
brother of J. W. s. the balance, and eX-
ecuted an obligation to him. J. W. S.
was insolvent ST this time and the trans
fer was made to secure debt due his
brother Of SG9G, and the balance was to
be paid on q debt Of $4,000 due J. S.
Sheek, another brother Of j. w. S., pro-
Yided it was not paid out of certain
collateral ne then held. When the obi
CATION for the cattle fell due, Lane made
3 bill OF sale OF tfty-eight cattle, valued
at $3.50, which discharged the debt due
@. W. Sheek, and J. S Sheek having
collected his claim in the meantime, the
balance was paid into me hands of j. w.
S., who, as ne testified, appropriated IN
payment Of house - MS sister to whom
he was under obligation, ana the
balance was paid to mis- creditors.
The bill Of sale WAS dated 1874, ten years
before the levy vas made, which gave
rise to this suit. The cattle levied on
were in part those transferred by the bill
of sale and their increase. 1t was sworn
that J. W. Sheek, because his brother G.
w Sheek was physically unable, at
tended TO the cattle, for which he was to
receive One-thiTd Of the calves. The
court did not er" in overruling appellants
application for continuance, because the
agreement for it was made by appellee's
counsel without their consent. Appellant
did not show that it would prejudice their
claim but relied solely on the agreement
while appelees showed that it would
prejudice them very much, by cattle
dying, etc. Such agreements are not
like contracts and may be set3 aside by
the exercise Il sound discretion in the
court. The court did not err in eXclud-
ing Witness Lanes dispositions because
ne was in attendance at the term Of the
court. The court instructed the Jury
they must believe from the evidence that
J. W. Sheek was the &C
tuai owner Of the property IN
order to subject it 10 appellants debt.
This was set down as error by the appel
lants. The charge they asked for related
more to the transfer from Lane than the
bill of sale, and the transfer was not put
in issue, but II raises the question of
fraud in the transfer by the bill OF sale.
a consideration of the facts Of the case
shows that the debt of $3.50, was bona
tide and the transfer was not made TO
hinder, delay, etc, the creditors. The
transaction WIS like all other pledges and
the relationship Of the parties was not
sufficient Of itself 10 show fraud. The
payment OF the balance back to
j. W. Sheek could not affect G. W.
Sheek's rights because the latter's only
connection with the affair Was to collect !
his debt. The evidence so clearly and |
fully showed the title in G. W. Sheek that |
no other verdict could be given. The |
judgment is affirmed.
c. W. Baldridge ct al. VS.. a. f.
Penland, appeal from Coleman county;
opinion by Stayton, a. J. This was
suit by q retail liquor dealer
against the estate Of Thomas Hays,
deceased. 1t was appealed by appellee
from the Probate court and by
appellant from the District court.
The questions raised as TO the appeal
bond and the accuracy of the transcript,
etc, are not vel taken The account
rendered was taken from appellee g
books, which latter, were afterwards de-
strOved by fire, and shows charges such
as ''to bar, for billiards and drinks"
sftO billiards, games and drinks" there
was also q charge of corn end money
loaned. The clerks who made part of the
entries testified to their correctness and
appellee testified to those he made.
IL introducing a BRIDESMAIDS &C
count, several things are necessary before
such books are admissible. The items
must be shown TO have been made from
day to day, and must relate to the bust
ness Of the dealer, must show with res-
sonaoe certainty Whist is the basis OF the
charge, must be regular on their face.
The dealer should be required TO evidence
OF fair dealing, etc. In this case the items
are not shown 10 have been made con-
tempOrgneOuSly with their purchase.
"Games," corn and lending money was
not the business of the dealer. The
charges for different items do not show
what each were for. Some entries show
abaIance for drinks" ETC., showing
some payments to have been made.
That copies from books may be
received there is no question, but it
must be shown that the books were so
kept as 10 render them admissible if pro-
duCed; we 90 not think the proof justi-
ted the admission of sny portion of the
copy OF the account, and for the error in
admitting il the Judgment of the District
court is reversed snd the cause re-
manded.
Hord & Dignowi,y vs.. PIacido Oil
vsrri, from Bexar county; Opinion by
Staytou, A. j.
Appellee claims the land in contro-
versy under the King survey made in
IS4I, the appellants claim through pat
ent to themselves made in 1885. The
case presents only question of boun
darv Running the lines of the King sur
vey in accordance with the lines and cor
ners Of the Owen, ar older survey, which
are well marked, the land in controversy
is not included in the King survey. But
the appellee claims that this throws the
King survey too far west. The King
grant, in order to include the land in con-
troversy, must be started from corner
OF the Husman survey, made in 1858, but
appellee claims to have bought this part
of the King survey in 1858, when
he had 3 surveyor to fix
the lines. When appellants were
seeking TO locate the land in con-
troversy they applied to appellee for in
formation as 70 corners, etc, who re-
ferred them to ORTIZ, who, he said, knew
shout the corners, and Ortiz pointed out